Identity Theft Crimes

Aggravated Identity Theft under Title 18, United States Code, Section 1028A

Ever since 9/11 and the vast expansion of the internet for commercial purposes, the Federal government has cracked down on the theft of individuals identities. These thefts can include name, social security number, credit card number, birth date, or any other identifying characteristic. While some of these cases have received wide media attention such as the 2013 theft of 30 million Target customers personal information, not all Federal cases involving Identity Theft put you and your Federal criminal defense lawyer in the midst of such overwhelming and alleged fraud. Regardless of the accusations, however, you will be hard pressed to find a Federal prosecutor, Magistrate or District Court Judge who will be sympathetic to an alleged perpetrator of this crime. Because of this, the government has used the Federal Identity Theft statute (Aggravated Identity Theft, Title 18, United States Code, Section 1028A) as a tool to prosecute a myriad of cases.

At first glance, while many of the criminal allegations will leave you and your Federal Identity Theft Lawyer or criminal defense attorney to question why or how this statute is being enforced, merely because your alleged conduct does not appear to implicate one’s identity, does not mean that the government will not pursuing an Identity Theft conviction. Along with the enhancement or inclusion of Aggravated Identity Theft, the crimes you may face are as abundant as the personal information you may have allegedly and wrongfully accessed, used or obtained.

Identity thieves, as defined by the government, have obtained personal identity information in a myriad of ways. As the manner in which this crime has been perpetrated has escalated and evolved, so has law enforcement’s investigative techniques and diligence in prosecuting offenders. Some of these Identity Theft crimes stem from or are a part of “dumpster diving,” searching discarded electronics such as old phones and computers, public record searches, stolen credit cards and other forms of identification, credit card skimming, “shoulder surfing” at ATMs, computer hacking using Trojan horses or other spyware or malware, hacking computer networks, creating fake websites, abusing IT privileges, impersonating trusted websites, emails or companies, browsing social networks, stealing checks and other mail, among many more.

To help combat Identity Theft and fraud, Congress passed a law, Aggravated Identity Theft, Title 18, United States Code, Section 1028A. Aggravated Identity Theft mandates that, if convicted, a defendant must be sentenced to an additional 2 years in prison over and above any time served for other offenses. To be clear, if you are charged with this offense in conjunction with Wire Fraud, Mail Fraud, Bank Fraud, Computer Fraud or any other crime, these two years will be placed on top of the sentence you receive for the other offenses. Simply, a staggering sentence of the underlying or associated offense is arguably just the beginning as a sentence for Identity Theft kicks in after the fact.

Further Defining Aggravated Identity Theft

As noted above, Identity Theft can be prosecuted in Federal court under a number of different statutes; however, no matter what the charge, Federal prosecutors have at their disposal the option of also charging Aggravated Identity Theft under Title 18, United States Code, Section 1028A.

Anyone who, during and in relation to any enumerated crime (including but not limited to Mail Fraud, Bank Fraud, Wire Fraud, Computer Fraud, Passport Fraud, etc.), knowingly transfers, possesses, or uses, without lawful authority, a means of identification or another person shall, in addition to the punishment for the enumerated crime, be sentenced to a term of 2 years in prison. As the statute notes, a conviction for Aggravated Identity Theft automatically adds 2 years onto any other sentenced imposed by the court. It does not allow the court any discretion. For that reason, it is important for your Federal Identity Theft attorney to vigorously advocate on your behalf so that Aggravated Identity Theft is not charged from the outset; or if it is, that the government does not include it in any plea offer.

Aggravated Identity Theft: The Elements of the Crime

To prove a defendant guilty of Aggravated Identity Theft, the government must establish each of the following elements beyond a reasonable doubt:

First, that the defendant knowingly transferred, possessed or used without legal authority a means of identification of another person or a false identification document; Second, that the defendant knew that the means of identification belonged to a real person; and Third, that the defendant did so during and in relation to an enumerated felony (as noted above).

It is relevant and critical to recognize that in Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888-94 (2009), the Supreme Court held that Section 1028A requires that the government prove the defendant knew that the “means of identification” he or she unlawfully transferred, possessed or used belonged to a real person. The word “person” includes both living and deceased persons, and the government is not required to prove that the defendant knew the person was living when the defendant committed the crime of Aggravated Identity Theft.

It is certainly worth repeating that Aggravated Identity Theft is an offense that prosecutors will pursue and charge if the evidence bares out the offense. Further, whether the case originated from the FBI, Secret Service or IRS, the United State Attorney’s Office will very likely attempt to secure a conviction for this crime and the Federal Judge you appear before will be bound to add two years to any sentence they hand down upon your conviction for the underlying crime.

Don’t wait until your livelihood and freedom have been taken away from you to seek out an experienced Federal Identity Theft criminal attorney. With our combined experience as Federal prosecutors and New York State Identity Theft prosecutors, along with our experience representing clients confronted with Identity Theft and related criminal allegations, the criminal lawyers at Crotty Saland PC can put their experience, knowledge and advocacy to work for you.

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